THE Pennsylvania ft Magazine OF HISTORY AND BIOGRAPHY ft

The Aurora and the Alien and Sedition Laws Part II: The Editorship of William Duane

OLLOWING Bache's death during the yellow fever epidemic in September, 1798, the Philadelphia Aurora reappeared in FNovember under the editorship of William Duane. The new editor proved to be as able a critic, commentator, and controversialist as Bache had been, enabling the Aurora to hold its position as the leading Republican organ in the United States. Indeed, Duane's energetic attacks on the Adams administration soon involved him in a sedition prosecution like the one pending against Bache when he died. Born in colonial New York of Irish parents, Duane resided in New York and Philadelphia for fourteen years before he returned with his mother to her native Ireland in 1774. For the next twenty-two years he lived in the British Empire, gaining so much renown as the liberal editor of the Calcutta Indian World that he was seized by the gov- ernor, deported without trial, and divested of his property without legal process because of his criticism of governmental officials of the East India Company. After a sojourn as Parliamentary reporter for 123 124 JAMES MORTON SMITH April the London Cjeneral ^Advertiser, Duane returned to Philadelphia, joining the ^Aurora as Bache's assistant in 1796.1 Only three months after the new editor assumed control in 1798, the Federalists brought their first charge against him. It was Duane's animosity toward the Alien Friends Act which set the stage for this legal conflict. Because of his Irish ancestry, he took an even more pronounced stand against that statute than Bache had done.2 Secre- tary of State Timothy Pickering, chief enforcement officer of the Alien and Sedition Laws, and the Federalist press immediately de- nounced the Republican editor as a United Irishman.3 When a group of citizens and aliens residing in the nation's capital voted to send a petition to Congress requesting the repeal of the Alien Law, Duane and three recent arrivals from Ireland, Dr. James Reynolds, Robert Moore, and Samuel Cuming, were chosen to circulate some of the memorials for signatures in Philadelphia. On the morning of Sunday, February 9, 1799-, Duane and the others visited St. Mary's Catholic Church where they posted small signs requesting "Natives of Ireland, who worship at this church ... to remain in the yard after divine service, until they have affixed their signatures to a memorial for the repeal of the zAlien ^ilir Two signs were tacked to the church walls near the entrance, and others were placed on the gates leading into the churchyard.4 Some of the Federalist communicants objected to the posting of a "Jacobin paper" on church property, and ripped the signs off.5 One of them reported to the priest that "a seditious meeting" was scheduled in the yard after service and circulated this word among

1 Allen C. Clark, "William Duane," Records of the Columbia Historical Society (Washington, 1906), IX, 19-21. 2 In December, 1798, only a month after he began editing the Aurora, Duane observed that "the United Irishmen stand precisely in the same odious circumstances with relation to England that John Adams stood twenty years ago—they consider George III, an intolerable tyrant now, and he did then." 3 Pickering to the President, Phila., July 24, 1799, Pickering Papers, XI, 487, Massachu- setts Historical Society. Duane always maintained that he was a native-born American, but eventually took out naturalization papers to be on the safe side. 4 Testimony of John Brown, "Trial of Duane, et. al. for seditious riot," Francis Wharton, ed., State Trials of the United States during the Administrations of Washington and Adams (Philadelphia, 1849), 34-8. In this report, Wharton incorrectly cites the Alien Enemies Law as the one being petitioned against. Ibid., 388 (note). It was the Alien Friends Act, however, that the petitioners opposed. See the Debates and Proceedings in the Congress of the United States, Fifth Congress, Third Session, 2884-2906 (Feb. 12, 1799), hereafter referred to as Annals. 5 Testimony of James Gallagher, Wharton, 351. i953 DUANE AND THE ALIEN AND SEDITION LAWS 125 some of the church members.6 During the service, however, there was no disturbance or noise, and when church let out, Reynolds, Moore, and Cuming had two memorials spread out on a tombstone waiting for signatures.7 A large number of people gathered around Dr. Reynolds, and several persons subscribed to the petition.8 When someone shouted "Turn him out," one of the crowd pushed Rey- nolds, who pulled a gun to defend himself. The doctor was then knocked down, disarmed, and kicked, and the petitioning rally broke up.9 "Porcupine's (gazette branded this episode as a "UnitedIrish %iot" and cautioned Philadelphians that the "day is now come" when the United Irish, "a nefarious combination" favoring the Irish inde- pendence movement, constituted "a terror and torment to Amer- ica."10 Although there was no evidence that Duane, Moore, or Cuming participated in the Reynolds scuffle, they were later arrested with the doctor.11 All four were charged with being evil-disposed persons who willfully and maliciously stirred up a seditious riot by attempting to obtain signatures to the petition against the Alien Law, with intent to subvert the government of the United States.12 Cited as "Duane's case," the trial that followed might better have been called "Reynolds' case"; all of the evidence dealt with the doctor's actions. The fact that the proceedings are designated by Duane's name, however, suggests that the Federalists considered the editor the most important man in the group indicted. If they could convict Bache's successor as an accomplice and participant in the

6 Ibid. Also see the testimony of John Connor, ibid., 349. 7 Testimony of John Brown, ibid., 348. 8 Statement of defense counsel Robert H. Dunkin, ibid., 359. 9 Testimony of Lewis Ryan, ibid., 354-3551 of Gallagher, ibid., 352. 10 Porcupine's Gazette, February, 1799, reprinted in William Cobbett, Porcupine's Works; containing Various Writings and Selections . . . (London, 1801), X, 97. H Two indictments were returned. One charged the quartet with seditious riot, and the other charged Reynolds with an assault on Gallagher with a deadly weapon, with intent to kill. The cases were tried together and therefore were heard by the same jury. They are cited, however, as the "Trial of Duane, Reynolds, Moore and Cuming, for Seditious Riot," with no reference to the separate charge against Reynolds. See Wharton, 347. The trial was held on Feb. 21, 1799, in the state Court of Oyer and Terminer for the County of Philadelphia. 12 The presentment to the grand jury was drafted by Robert Wharton, the Federalist mayor of Philadelphia. It charged the four men with deliberately procuring an assembly of people with the determination of subverting the government of the United States. Ibid., 363. Although the indictments were not drawn up in the Attorney General's office, they were prosecuted in the name of the Commonwealth of Pennsylvania. Ibid., 346-347. 126 JAMES MORTON SMITH April Reynolds "riot/' they could fine and imprison him, along with the other offenders against "national dignity and decorum/' Joseph Hopkinson, composer of "Hail Columbia" and a recent appointee of President Adams to negotiate an Indian treaty, was selected as special state prosecutor, and Alexander J. Dallas, Secre- tary of the Commonwealth of Pennsylvania, headed the defense counsel. Both sides agreed that the petition was a protest against the Alien Law, that it was unexceptional in itself, that some members of the congregation signed it and that others had wanted to, and that no violence occurred until the rush on Reynolds.13 Testimony revealed that it was not unusual in Ireland to post notices on church gates, that it was customary for the congregation to tend to public business after church, and that it was never considered a profanation of the church or an insult to the congrega- tion, although the pastors were always consulted.14 In this instance, however, the petitioning group had failed to obtain the consent of the church authorities. This lack of consultation, the head priest testi- fied, was not only an insult to himself and the board of trustees; he considered any meeting held after church without his consent to be "perfectly wrong."15 Matthew Clay, a member of Congress from Virginia, swore that he had warned Reynolds of a plot to assassinate him and that the doctor had procured a gun to defend himself.16 None of the other defendants carried a weapon, and Reynolds did not produce his until pushed. There was no mention of misconduct on the part of Duane, Moore, or Cuming, and no proof that Duane was present when the scuffle took place.17 Indeed, the prosecutor did not mention Duane's name in his closing argument to the jury.18

13 Testimony of John Taggart, ibid., 2>$&\ Lewis Ryan, ibid.y 3$$\ James Gallagher, ibid., 3$i\ John Brown, ibid.y 348; and Thaddeus McCarney, ibid.y 361. 14 Testimony of Rev. Mr. Carr of St. Mary's Church, ibid.y 354. 15 Testimony of Rev. Leonard Neale, ibid.y 353. 16 Ibid., 359-360. 17 The prosecution introduced seven witnesses, headed by James Gallagher, Jr., who swore that he "did not see Mr. Duane at all." Ibid.y 352. Of the other witnesses, Connor did not see Duane, ibid., 351; nor did Rev. Neale, ibid.y 354; or Ryan, ibid.y 356. Rev. Carr's and Taggart's testimony did not deal with this question. Thus, the only witness who swore that he saw Duane was John Brown, who said that he saw all four men in the churchyard ten minutes before the service was over. At that time, he said, Duane and Moore "each . . . had a large paper, spread on the tombstone before them." Ibid.y 348. 18 Ibid.y 378-386. I953 DUANE AND THE ALIEN AND SEDITION LAWS 127 Nonetheless, the case was an attempt to strike at the nation's most influential Republican editor. Moreover, it was an attempt to sup- press the free exercise of the right of petition, at least when that right was exercised by aliens. Conceding that citizens have the right to petition for redress of grievances, Prosecutor Hopkinson declared that "aliens have no right whatever to petition, or to interfere in any respect with the government of this country—as the right of voting in elections is confined to our citizens, the right of petitioning is also —if aliens do not like the laws of this country, God knows there are ways and wishes enough for them to go back again."19 Following the same line of argument advanced by the nativists during the debates on the Naturalization Law of 1798, the state prosecutor contended that America's greatest evils arose from the admission of foreigners to political participation. "The introduction of this foreign leaven amongst us," he asserted, had "fermented the whole mass of the community" and finally "divided and rent" the country into contending political parties.20 In an aggressive defense speech, Dallas branded the trial as "a party case, a party question altogether," inspired by partisan hate. He called attention to the efforts of the Federalists to deprive the defendants of counsel, first by saying that they should not be al- lowed any, and then by saying that if any lawyer stepped forward, he ought to be denounced.21 "According to the politics of the present day," he argued, "any man who wishes to exercise the right of free opinion ... is marked out for party obloquy."22 The petitioners had been called Jacobins,23 Dallas declared, but the peaceful exercise of the right of petitioning could not be Jacobinism. It was guaranteed by the Constitution and no amount of denuncia- tion could convert it into a criminal act. By no legal contortion could the defendants' expression of opinion against the Alien Law be 19 Ibid., 379. 20 Ibid.y 380. Although the prosecutor did not mention Dallas by name, he slapped directly at him in one of his remarks to the jury. Born in Jamaica, the defense attorney had come to Philadelphia in 1783 to rise from "straitened circumstances" to Secretary of the Common- wealth. In an obvious reference to his legal opponent, Hopkinson asked if the jury had not seen foreigners forcing themselves into "the administration of our government, and ruling over us? Are there not those who, but a few years since, scarcely rose above the characters of needy vagrants and beggars, now riding in their carriages over us and our children?" 21 Ibid., 364. Dallas was assisted by John Beckley and Mr. Dunkin. 22 Ibid. 23 Testimony of Gallagher, ibid.y 351. 128 JAMES MORTON SMITH April twisted into an attempt or even an intention to overturn the Consti- tution and all law. "They never meant to oppose the [alien] law/' he continued, "but in the mode provided by the constitution."24 Deny- ing that there had been a riot, he justified Reynolds' action as self- defense, with no intent to murder. After a thirty-minute deliberation, the jury acquitted the de- fendants. Thus the Federalists lost the first skirmish in their cam- paign to suppress Duane. At the same time they also failed in their attempt to strike at the Democratic-Republican Party through the foreign-born in its ranks.25 The jury had repudiated the arguments that aliens were not entitled to a lawful exercise of the right of petition as guaranteed in the Constitution. Duane's release outraged Federalist editors, who attacked the Republican editor with increasing severity. When "a gentleman, with a horse-whip in his hand," reported that he had observed "a filthy, squalid and villainous looking wretch, muffled up in a great cloak, fleeing before him, like a thief from the hands of justice," the Qazette of the United States suggested that the disheveled person probably was Duane, "one of the editors of the j^ucifer." "Con- science knocks thus at the hearts of villains," the Federalist editor assured his readers, "and even visits them inwardly with those terrors, which a sense of guilt infallibly produces."26 By midsummer of 1799, the Federalists were ready to launch a second attack on the obnoxious editor. On July 24, Duane discussed the role of British influence in American politics, asserting that "the high character for private and public virtue, which America achieved in her struggle against Britain has been tarnished by British in- trigue." Moreover, he claimed to have documentary proof that British influence had had some success in the United States. The best evidence, he declared, was a letter in his possession in which Presi- dent Adams deplored the effect of British influence in procuring the appointment "of an officer of the most confidential and important trust under the government."27

24 Dallas' speech to the court and jury, ibid., 367. 25 Raymond Walters, Alexander James Dallas, Lawyer, Politician, Financier, IJ59-181J (Philadelphia, 1943), 79. 26 Gazette 0} the United States, Mar. 2, 1799. 27 Aurora, July 24, 1799. In 1792 Adams wrote his friend Tench Coxe that he suspected "much British influence in the appointment" of Thomas Pinckney as Ambassador to England. Adams to Coxe, Quincy, May, 1792, George Gibbs, ed., Memoirs of the Administrations of I953 DUANE AND THE ALIEN AND SEDITION LAWS 129 Citing a letter written by Secretary Pickering as further docu- mentary evidence of the baleful British influence, Duane accused the leading Cabinet official of saying that in case of a war with Great Britain a foreign war was not the only one to be dreaded. This, Duane wrote, was the same as saying that Britain's adherents would oppose the American government in any conflict with England.28 Finally, he alleged that the British secret service had expended $800,000 in the United States in 1798 to influence American policy.29 "These are facts," Duane concluded, "which no perfidious artifices can evade, nor impudence deny. They are such facts as the American people must remember and act accordingly, or suffer their liberties to perish, and their posterity to be enslaved. . . . the people must endeavor to identify as well as they can the channels in which this corruption of Britain has circulated."30 In calling the President's attention to the article, Pickering assailed Duane's suggestion that Adams "had asserted the influence of the British Government in the affairs of our own—and insinuated that it was obtained by bribery." This was not the first time the editor had made this suggestion, the Secretary said; the ^Aurora constantly poured forth "an uninterrupted stream of slander on the American Government." Pickering proposed to dam it up by a dual legal proceeding against the editor. He promised to direct the Federal District Attorney to institute a sedition prosecution against Duane, but also mentioned that Duane might be banished from the United States as a dangerous alien.31

Washington and John Adams, Edited from the Papers of Oliver Wolcott, Secretary of the Treasury (New York, 1846), II, 424-425. In 1797 Adams dismissed Coxe as Commissioner of Revenue. The Secretary of the Treasury, Wolcott, alleged misbehavior, but Coxe claimed that he was dismissed because of his political principles. In any event, Coxe became a Republican stalwart, and it was through him that Duane received Adams' letter. See Richard Hildreth, The History of the United States of America, rev. ed. (New York, 1856), V, 379-380. 28 Aurora, July 24, 1799. Duane referred to Pickering's letter to James Monroe, American Ambassador to France, on Sept. 12, 1795, in which the Secretary vindicated Jay's Treaty and American neutrality and exhibited "the evils to flow from a war with Great Britain." At that time, he wrote that "it would be happy for us, if we could contemplate only a foreign war, in which all hearts and hands might be united." See Pickering to the President, Phila., July 24, 1799, Pickering Papers, XI, 487. This letter is reprinted in Charles Francis Adams, ed., The Works of John Adams, Second President of the United States (Boston, 1850-1856), IX, 3. 29 Aurora, July 24, 1799. 30 Ibid. 31 Pickering to the President, Phila., July 24, 1799, Pickering Papers, XI, 487. Pickering mailed a copy of the Aurora article to Adams. He also took notice of Duane's paragraph about his writings. I3O JAMES MORTON SMITH April "The editor of the ^Aurora" the Secretary informed the President, "pretends he is an ^American Citizen^ saying that he was born in Vermont, but was, when a child, taken back with his parents to Ireland, where he was educated. But I understand the facts to be, that he went from America prior to our revolution, remained in the British dominions until after the peace, went to the British East Indies, where he committed or was charged with some crime, and returned to Great Britain, from whence, within three or four years past, he came to this country to stir up sedition and work other mischief." Pickering therefore presumed that Duane was really a British subject who could be banished from the United States for his turbulence. Had the editor not set himself up as a captain of a com- pany of volunteers whose distinguishing badge was a plume of cock- neck feathers and a small black cockade with a large eagle? "He is doubtless a United Irishman," the Secretary concluded, "and the company is probably formed, to oppose the authority of the Gov- ernment; and in case of war and invasion by the French, to join them."32 On the same day, Pickering also sent Duane's offensive article to William Rawle, the Federal District Attorney in Philadelphia. "If the slander on the American Government," he wrote, "will justify a prosecution against the Editor or Author, be pleased to have it commenced."33 President Adams agreed that the ^Aurora's article was "imbued with rather more impudence than is common to that paper." "Is there any evil in the realms of actuality or possibility," he asked his Secretary, "that the Aurora has not suggested of me?" Although he disdained any attempt to vindicate himself of any of that paper's lies, he thought Rawle would be unfit for his office if he did not think the passage libelous. "If he does not prosecute it," the President stated emphatically, "he will not do his duty." Adams also concurred that "the matchless effrontery of this Duane merits the execution of the alien law." "I am very willing," he confessed, "to try its strength upon him."34

32 Ibid. Duane was a captain in the "Republican Greens." See the Aurora, July 24, 1799. 33 Pickering to Rawle, Attorney of the United States for the District of Pennsylvania, Department of State, July 24, 1799, Pickering Papers, XI, 486. 34 Adams to Pickering, Quincy, Aug. 1, 1799, C. F. Adams, IX, 5. I953 DUANE AND THE ALIEN AND SEDITION LAWS I3I On July 30, even before President Adams gave his approval for the twofold proceedings, Duane was arrested for seditious libel.35 On August 2, he was brought before District Judge Richard Peters and bound over until the October term of court.36 In reporting his arrest, the editor swore that he had not published a fact which he could not prove. "Neither persecution/' he promised, "nor any other peril to which bad men" might expose him would make him swerve from the cause of republicanism. Pickering immediately notified President Adams of the instigation of the criminal suit against the editor for his charge that English secret service money had been distributed in the United States. Moreover, the Secretary issued a standing order to the government prosecutor to survey the ^Aurora constantly "and to institute new prosecutions as often as he offends." He hoped that the President would approve this action.37 Adams replied that Duane's trial for seditious libel "will bring out some whimsical things. At present I will say nothing. I have no apprehensions for myself or the public from the consequences."38 From Mount Vernon, too, came words of encouragement to Pickering. George Washington agreed that Federal officials should not remain silent "under the direct charge of bribery" by Duane. "The most dangerous consequences," he wrote, "would, in my opinion, have flowed from such silence, and therefore could not be overlooked." He approved the sedition prosecution against the editor, "for there seems to be no bounds to his attempts to destroy all confidence that the People might and (without sufficient proof of its demerits) ought, to have in their government; thereby dissolving it, and producing a disunion of the States." That civil war was the object of the

35 Gazette of the United States, July 31, 1799. 36 Ibid., Aug. 3, 1799. He was freed on $4,000 bail. Duane posted $2,000, and two sureties posted $1,000 each. 37 Pickering to the President of the United States, Phila., Aug. 1, 1799, Pickering Papers, XI, 527. Also see C. F. Adams, IX, 71. 38 Adams to Pickering, Quincy, Aug. 16, 1799, ibid., IX, 15. 39 Washington to Pickering, Mount Vernon, Aug. 4, 1799, Pickering Papers, XXV, 72. This letter is also printed in John Fitzpatrick, ed., The Writings of George Washington from the Original Manuscript Sources, 1745-1799 (Washington, 1931-1944), XXXVII, 322-324. 13^ JAMES MORTON SMITH April Since Duane was free on bail until the October term of court, the aAurora continued to appear regularly. The vigilant Secretary of State, however, scrutinized each issue and handed several to the District Attorney, who examined them for seditious material.40 When the government offices were moved to Trenton in the late summer to avoid the yellow fever epidemic of 1799, Pickering dis- patched a special messenger to buy the ^Aurora and sent a bundle of them to Rawle, again instructing him to institute additional sedition prosecutions against Duane if he found anything which he thought could be made the basis for a legal charge.41 When the Federal Circuit Court convened, therefore, Duane ap- peared not only to stand trial for his story about British influence, but also to face a second indictment which charged that he had violated the Sedition Law on August 3 with some offensive remarks about the conduct of Federal troops.42 Presiding at this session were Associate Justice Bushrod Washington of the United States Supreme Court and District Judge Richard Peters. The indictment based on Duane's allegation of British influence presented them with a ticklish problem. Although Duane was charged with libeling President Adams and the government, he claimed that he possessed one of the Chief Executive's letters which discussed that influence in American politics.43 The proceedings took a dramatic turn when the court expressed some doubt that the President had written such a letter, and the editor offered to stand trial instantly on that particular issue. "The Court and the District Attorney," he later wrote, "were, for a moment, struck with astonishment, and a large concourse of people assembled to see the Editor of the Aurora hauled over the coals of the sedition ordeal, expressed their feelings by a sudden but impressive emotion of surprise and conviction."44 On learning that Duane had an authenticated copy of the Presi- 40 Pickering to Rawle, Department of State, Trenton, Sept. 22, 1799, Pickering Papers, XII, 82. 41 Ibid. 42 Aurora, Oct. 22, 1799. Also see Gazette of the United States, Oct. 19, 1799. The court met on Oct. 15 in Norristown because Philadelphia was besieged by yellow fever. 43 The indictment also charged Duane with seditious utterances because of his remarks about Pickering's letter to Monroe. See the Aurora, May 12, 1800. Thus Pickering, who instituted the case with the President's approval, also was an interested party to this indict- ment. 44 Aurora, Nov. 1, 1800. 1953 DUANE AND THE ALIEN AND SEDITION LAWS I33 dent's letter, Judge Washington discussed whether or not it would be legal evidence, and concluded that "it might possibly be admitted/' even though it were "to be procured in evidence against Mr. Adams himself." Duane's counsel contended that the letter could not be refused. All his client had written, Dallas said, was that Mr. Adams had asserted that British influence had been exercised in American politics. Since the Sedition Law allowed the truth as a justification, the lawyer argued that Adams' authenticated letter containing this assertion was proof of the truth of Duane's statement.45 Nevertheless, Dallas asked for a postponement of the trial until the next term because of the absence of such material witnesses as Timothy Pickering, James Monroe, and Tench Coxe, who were needed to prove other parts of Duane's article.46 After the editor swore to the necessity of these witnesses and of documentary evi- dence which could not be obtained in Philadelphia until the fever subsided, the court delayed its decision for a day before agreeing to postpone the trial on both indictments until June 11, 1800.47 Duane then was freed on $3,000 bail.48 Chagrined that the "whimsical things" brought out by the prose- cution benefited Duane rather than President Adams,49 Judge Peters "recommended" that he refrain from publishing either the indict- ments or the proceedings. If the editor violated this suggestion, the Judge threatened "to take notice of it."50 In the story discussing the postponement of his trial, Duane abided by this ruling "out of respect to the constituted authorities." He was willing to remain silent on the charges, he said, until they were decided by the due course of law, trusting that the public would not consider "the find- ing of two bills upon ex parte evidence as a conviction. He solicits only a fair and liberal neutrality of opinion—and no more, until the matter is as fairly brought to legal issue."51 At the same time, however, Duane indicated that the pending trial would not intimidate him. On the very day that he reported

45 ibid. 46 Ibid., Oct. 22, 1799. Also see the Gazette of the United States, Oct. 19, 1799. 47 Ibid. 48 Ibid.; Duane posted a $1,000 bond, and two sureties each posted the same amount. 49 Richard Peters to Pickering, Oct. 23, 1799, Pickering Papers, XXV, 259. 50 Aurora, Nov. 1, 1800. 51 Ibid., Oct. 22, 1799. 134 JAMES MORTON SMITH April the postponement of his trial for the article on British influence, he repeated the charge in an editorial entitled "State of the Republic." "Where are we?" he asked rhetorically. "Precisely at that point when the fate of America is to be decided, by either of two descrip- tions of persons. By the temper, stedfastness, and the wisdom of the people's servants. OR By persons secretly combining and covertly usurping the public power— persons who are sapping the foundations of our freedom, prosperity, and national character, who daringly menace the constituted authorities to deter them from acts the most salutary, and necessary to the preservation of our peace and freedom. Duane then repeated his charges of British influence. "It remains to be seen," he concluded, "whether this secretly working faction acting in concert with British agents and devoted solely to British Views are to prevail—or that the voice and will of America, speaking thro' its constitutional organs, and governed solely by American views, will prevail to the utter exclusion of all and every foreign power > whether that power acts by MENACE, by deceitful artifices, or by corruption."™ Coming less than a week after the postponement of Duane's trial, this defiance must have galled the Federalists, yet they did not indict him for this restatement of his original charges. Indeed, Judge Peters confessed gloomily that he doubted if the postponed case would be tried,53 and William Cobbett confided that he had "every reason to believe, that it will never come on."bA Nor was the prosecution resumed. Instead, Duane finally informed his readers that the pend- ing trial had been "withdrawn by order of the President."55 The reason for this action by the Federal authorities was obviously to prevent the circulation of the embarrassing letter in which Adams had asserted, in 1792, that he suspected "much British influence in

52 Ibid, 53 Peters to Pickering, Oct. 23, 1799, Pickering Papers, XXV, 259. 54 Memorandum by William Cobbett, undated, G. D. H. Cole, ed., Letters from William Cobbett to Edward Thornton, Written in the Years 1797 to 1800 (London, 1937), 122. 55 Aurora, Oct. 3, 1800, reprinted in Cobbett, XII, 145. Also see Duane to a correspondent in Richmond [James T. Callender], Apr. 17, 1800, Examiner (Richmond, Va.), May 2, 1800. This letter is also printed by Worthington C. Ford, ed., "Letters of William Duane," Massa- chusetts Historical Society Proceedings, 2nd Series, XX (1906), 260. I953 DUANE AND THE ALIEN AND SEDITION LAWS I35 the appointment" of Thomas Pinckney as Ambassador to England.56 Rather than discomfit the Chief Executive, District Attorney Rawle withdrew the prosecution to await a more favorable time to suppress the increasingly objectionable editor.57 As the election of 1800 neared, it became urgent that the Feder- alists should silence the chief opposition gazette, or at least discredit its constant attacks. Citing Duane as a leading antiadministration "scribbler/' they condemned him as one of the "foreign Emissaries" chosen by the Jacobins to direct their campaign publicity.68 The Philadelphia Qazette declared that he would be guided by the "Chief Juggler," Thomas Jefferson, who had finally "obtained the entire management of the Jacobin puppets." According to this Federalist report, Duane would direct the attack on the government in the eastern part of the United States.59 The coming campaign promised to be a difficult one for the Federalists, whose nominee for President, John Adams, had won over Jefferson by but three votes in 1796. In 1799, moreover, the Federalists lost the gubernatorial race in Pennsylvania. This meant, of course, that the Keystone State was lost to them in 1800, unless the Presidential electors were chosen by districts rather than by a state-wide vote. The Federalists in the Pennsylvania legislature therefore tried to change the state election law to provide for district elections.60 66 Adams to Coxe, Quincy, May, 1792, Gibbs, II, 424-425. 67 James Schouler, History of the United States of America under the Constitution, iySj~iSyy (New York, 1880-1913), 1,460. Coxe forbade Duane to publish Adams' letter and Dallas made the same recommendation. The editor did not violate his promise to Coxe until the Gazette of the United States and Porcupine's Gazette accused him of forgery and falsehood in fabricating the letter. Thus the extreme Federalist papers, which had split with Adams in February, 1799, when he appointed a second mission to France, brought about the publication of the letter. Duane resolved to print it without Coxe's knowledge and contrary to his request not to, because "any accident which might befall Mr. Coxe, might deprive the Editor of the means of establishing its authenticity." Aurora, Nov. 1, 1800. The appearance of this confidential letter occasioned an apology from President Adams to Thomas Pinckney. See the President's letter of Oct. 27, 1800, Gibbs, II, 425. For Coxe's reply to the President's innuendoes against him, see Coxe to Duane, Aurora, Nov. 1, 1800. 58 Philadelphia Gazette, Mar. 11, 1800. 59 "A Federal Republican," ibid., Mar. 12, 1800. 60 Harry Marlin Tinkcom, The Republicans and Federalists in Pennsylvania, 1790-/801: A Study in National Stimulus and Local Response (Harrisburg, Pa., 1950), 243-244. Although the Federalist candidate, Ross, lost the election, he carried thirteen counties and the City of Phila- delphia, while McKean carried but twelve. I36 JAMES MORTON SMITH April At the same time Senator James Ross, the defeated candidate for governor of Pennsylvania, introduced an electoral count bill in the United States Senate in a bold attempt to alter by law rather than by amendment the constitutional system of counting the Presidential electoral vote. A thoroughly vicious measure, it would have estab- lished a "Grand Committee of Thirteen," consisting of six members elected by each House, and the Chief Justice of the Supreme Court. Since both the Senate and the House were controlled by Federalist majorities and all members of the Supreme Court were thorough Federalists, the committee would have been an adjunct of the Federalist Party. Meeting in secret session, this body was to summon and examine men and papers, determine which electoral votes to count and which to disallow, throw out the illegal votes, and decide on who should be President according to their count of the electoral vote. Their report was to be made on March 1, and there was to be no appeal from their decision.61 In noting the introduction of the Ross bill, the ^Aurora described its backers as "the party hostile to the popular interests/' who wished "to destroy the popular authority and to engross every power which the people enjoy by the right and constitution in the hands of a few."62 Convinced that the measure was a scheme to control the election of 1800, three Republican Senators furnished copies to Duane, who published the complete text on February 19, 1800. Asserting that the Federalists were bent on depriving the people of a fair election, the editor claimed that the bill had been drafted by a Federalist caucus without the knowledge of Charles Pinckney, Re- publican Senator from South Carolina, who was on the Senate com- mittee considering Ross's motion. The bill, Duane concluded, was "an offspring of this spirit of faction secretly working."63

61 The Ross bill contained fourteen sections. It is printed in full in the Aurora, Feb. 19, 1800. Ross introduced his resolution on Jan, 23, 1800. See Annals, 6C, iS, 29-32. Walters, 92-93; Dumas Malone, The Public Life of Thomas Cooper, 1783-1839 (New Haven, Conn., 1926), 113-116; and John Bach McMaster, A History of the People of the United States (New York, 1883-1913), II, 462-465, give good sketches of this episode. 62 Aurora, Jan. 27, 1800. 63 Ibid., Feb. 19, 1800. Duane incorrectly reported that the bill had passed the Senate, when in reality it had only received its second reading. Two of the three copies of the bill which the editor received were handed to him by their donors, who gave him permission to print the bill and to disclose their names if he wished to. The third copy was left at the Aurora office under a blank cover. Duane never revealed the names of his informants. Ibid., Apr. 2, 1800. I953 DUANE AND THE ALIEN AND SEDITION LAWS 137 The aroused Federalist Senators were so chagrined at these charges that they sought a way to punish the editor for his audacity in pub- lishing a report of their proceedings and commenting on their con- duct. They finally hit upon the novel expedient of appointing a standing committee of privileges.64 Although such a body had never before existed, a five-man committee was established to determine whether or not Duane's publication of the bill was a breach of the Senate's privileges.65 They were to find out by what authority he published the bill, and by what authority he stated that Pinckney had never been consulted. A blanket authorization also was granted to the committee to investigate "the origin of sundry assertions in the same paper" about the Senate. Finally, the committee was em- powered to send for persons, papers, and records on any of these subjects.66 In discussing his motion, Senator Uriah Tracy took a lofty posi- tion, bluntly declaring that it was a crime to publish a bill while it was still before the Senate. Nor was the press at liberty to publish untruths respecting the official conduct of that body. Yet Duane's paper was guilty of both crimes, he charged. It not only published the Ross bill, but also asserted that it had passed the Senate, even though every Senator knew that it was still before them and might yet be recommitted, amended, or rejected.67 Moreover, he continued, every Senator knew that Pinckney had participated in the discus- sions of the Ross committee; even Duane had confessed his error. Yet the original falsehood, Tracy insisted, even though retracted, must have been "calculated to produce an effect upon the public mind."68

64 Sen. Jonathan Dayton of New Jersey, a brigadier general in the provisional army under the field command of Alexander Hamilton, proposed on Feb. 25, 1800, that the committee be established. Annals, 6C, iS, 53. A straight party vote of 22 to 7 approved this suggestion next day. Ibid., 62. Also see the Aurora, Mar. 18, 1800. 65 Annals, 6C, iS, 62. This committee, all Federalists, included Uriah Tracy of Connecticut, Henry Latimer of Delaware, Nathaniel Chipman of Vermont, and John Brown of Kentucky, in addition to Dayton. 66 Ibid., 63. An amendment to this motion authorized the committee to investigate why Duane reported that the bill had already passed the Senate when it had received only its second reading. Ibid., 68 (Mar. 5,1800). These proceedings are reported in the Aurora, Mar. 18, 1800. 67 Annals, 6C, iS, 85. 08 Ibid., By. I38 JAMES MORTON SMITH April Asserting that liberty of the press meant the right to publish only "truth and just political information/' Tracy argued that it was as necessary to maintain the privileges of the Senate as it was to sup- port the liberty of the press. The Constitution, he said, conferred on Congressmen "several privileges" which were given so that Congress might execute its public duties.69 These privileges were established not for the particular advantage of Senators and Representatives, but "for the interest of the people." To maintain the privileges of the Senate, therefore, was to maintain "the liberty of the citizens, and the security of the Government."70 These latter objects, the Senator reasoned, should not be sacrificed to the licentiousness of the press. When the privileges of the Senate came into conflict with the liberty of the press, it became necessary to ascertain the limits of the privileges. Tracy denied that these applied only to conduct in the Senate chamber. Since they were conferred to promote "the general interests of the citizens," the Senate could be guided only by sound discretion and common sense. The authority to punish interruptions of the Senate's deliberations, therefore, "must extend to remedy the evil wherever we may meet it, or otherwise our authority is inadequate to protect itself." Since Duane's story had "interrupted" the Senate's proceedings, Tracy continued, it was a breach of the Senate's privileges.71 By pushing this line of argument to its limits, the Connecticut Senator finally concluded that the Senate could not be questioned anywhere at any time by anyone. "If it is admitted that we have the right of protecting ourselves within these walls, from attacks made on us in our presence," he argued, "it follows of course that we are not to be slandered or questioned elsewhere." This non sequitur be-

69 Ibid. These are the privileges as defined in the Constitution: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member." Art. I, Sec. 5. Senators and Representatives "shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, . . . and for any Speech or Debate in either House, they shall not be questioned in any other Place." Art. I, Sec. 6. 70 Annals, 6C, iS, 87. 71 Ibid., 86-87. I953 DUANE AND THE ALIEN AND SEDITION LAWS I39 came the basis for immediate proceedings against Duane. That "dar- ing editor" had circulated a defamatory article against the Senate and "the right of self-preservation" made it mandatory that the Senate itself instantly contradict this assertion. But contradiction alone was not enough. "The slow and tardy steps of truth," Tracy announced, always are outdistanced by the "defamation and cal- umny of yesterday." Nor was an indictment and trial the solution. This procedure was so slow that the foul aspersions of the editor would continue to circulate, and the Senate, having been suspect so long, would sustain "a deep wound."72 According to Senator Tracy, the only way to vindicate the reputa- tion of the Senate and to promote respect for its dignity, which derived from the people, was for the Senate to punish the editor for his crime. He hinted that even if this could not be done, the inquiry might "lead us to discover some person whom we can punish." Per- haps some Senator was in "a secret league to transmit intelligence which is confidentially entrusted to his care."73 He closed with a veiled threat to members who might be guilty of communicating the texts of bills to editors. Since the question of privilege was a new one, he informed them, it might be necessary to purge some Senators before the Senate itself acquired a "right understanding" of its prerogatives.74 After these drastic proposals, however, Tracy entered a disclaimer; "he did not mean to punish for publishing the transaction which took place in the senate, but to prevent misrepresentation and abuse."75 His whole speech, nevertheless, made it evident that he wanted to punish Duane without trial by jury for his publication of the Ross bill and for his comments on the reasons why he thought the Feder- alists supported it. The Democratic-Republican minority launched a vigorous opposi- tion to Tracy's motion to investigate the ^Aurora. Since his name was mentioned in both Duane's article and in Tracy's motion, Senator Charles Pinckney thought it altogether proper that he should dis- cuss the proposed conduct of the Senate. Not only did Tracy's

72 Ibid., 87. 73 Ibid., 86. 74 Ibid., 87. 75 Ibid., 87-88. I4O JAMES MORTON SMITH April motion involve a consideration of the privileges of Congress and freedom of the press, but it also raised the all-important questions of the constitutional right of the people to make observations on the conduct of Congress and their right to trial by jury if accused of any crime.76 Pinckney argued that the privileges of Congress are defined in the Constitution.77 Nowhere was there any mention of the right of either house to order the appearance of a person charged with printing attacks on the public conduct and to imprison him at its will. Nor did Congress possess any inherent power to punish verbal or written attacks on, or misrepresentations of, its conduct. If it had that power, why had the Congress of 1798 made such offenses triable in Federal courts under the Sedition Law? Although Pinckney deplored that law, he considered it less arbitrary than Tracy's motion, because it at least allowed the accused a trial by a jury of his peers rather than a trial by his immediate accusers.78 Knowing the oppressive use that the British Parliament had made of undefined "inherent" privileges, the Republican Senator con- tinued, the founders of the Constitution had specified the few prin- ciples necessary to the undisturbed exercise of legislative duties in a free government. "Would it be thought safe in this country/' he asked, "that a small majority of a small body, or single branch of a Legislature, should claim and exercise the authority, where they please, to send and seize any man in your community, however im- portant, and confine him in a loathsome dungeon, for six months together, merely because he has differed with them in politics, and criticised, as he had a right to do, on their legislative acts?"79 The prerogatives of Parliament, Pinckney declared, were utterly inadmissable in America. "Here the right to investigate the conduct of the Legislature, and of official men, is not only recognized and established, but the Constitution seems to require it as a duty, from the citizens." The people periodically delegated to their legislators the management of their public concerns, but the latter were always accountable for their conduct. "Public bodies are public property,"

76 Ibid., 82-83. 77 Ibid. He cited the provisions of Art. I, Sees. 5 and 6. 78 Ibid., 72-73. 79 Ibid. I953 DUANE AND THE ALIEN AND SEDITION LAWS I4I he asserted, "and so indeed are public men." To determine their merits, the public had a right freely and frequently to examine their actions. The press was a two-way channel, which not only kept the public informed, but which also conveyed truth "to magistrates and rulers, who will frequently find things written, that their friends did not dare to advise them."80 To shackle the press, he argued, was to chain the public mind.81 The South Carolina Senator recalled that the Senate formerly had met behind closed doors, but that the state legislatures which chose the Federal Senators had insisted that the debates be opened to the public view like those of the House of Representatives. If a printer was to be seized and dragged before the Senate bar, however, and perhaps imprisoned for mistakenly saying that a law had passed when it was only on its second reading, or that a committeeman was not notified of a meeting when he was, no reporter would venture to take the debates, and the Senate's doors might as well be closed again.82 Although he lamented the invective in the papers of both parties, Pinckney could not see why the ^Aurora should be investigated for its remarks, when the gazette of the United States was not examined for its even more violent abuse of the Senate when that body stopped enlistments for the army. If the criticism of that ultra-Federalist paper did no great violence to Tracy's concern for the dignity and reputation of the Senate, Pinckney hoped that the Connecticut Senator also would consent to overlook the ^Auroras. This seemed to him the best policy, for "in politics, as in religion, persecution seldom made converts."83 He concluded by calling for a postponement of Tracy's motion.84 If the ^Auroras article was criminal, Senator William Cocke of Tennessee added, it could be punished under the Sedition Law. He had never heard, however, that it was a crime to print the Senate's transactions. That body had always printed its bills for its own use, he pointed out, and these circulated without any injunction of secrecy. Often they were sent into every state of the Union. Yet so ibid., S2. 81 Ibid., 77-79. 82 Ibid., 80. 83 Ibid. Also see the Gazette of the United States, Feb. 13, 1800. 84 Annals, 6C, iS, 84. 14^ JAMES MORTON SMITH April Tracy's motion inquired how the editor of the

ssibid.

86 Ibid.) 92. The vote was 19 to 9. These proceedings are reported in the Auroray Mar. 18, 1800. 87 Annals, 6C, iS, 92-96. I953 DUANE AND THE ALIEN AND SEDITION LAWS I43 paper's criticism of the Senate was voted down/8 and further at- tempts to amend Tracy's motion were refused.89 In a desperate effort to assure a jury trial to the accused editor, the Republicans tried to replace the original motion with one author- izing the committee on privileges to inquire whether the ^Aurora story was a seditious libel and, if so, whether the Attorney General should be requested to prosecute Duane. As much as they despised the Sedition Law of 1798, the opposition party favored its use to the Senate's sitting as prosecutor, judge, and jury. This amendment, however, was lost by a straight party vote.90 The committee, headed by Senator Jonathan Dayton of New Jersey, then was instructed to investigate the ^Aurora and to report on measures to be taken against the editor.91 Condemning Duane without a hearing, the Federalist committee drafted a resolution which declared his article to be a "high breach of the privileges" of the Senate. By adopting this report, the Senate agreed that Duane had written a seditious libel, containing false, defamatory, scandalous and malicious assertions tending to defame the Senate, to bring its members into contempt and disrespect, and to excite against them the hatred of the good people of the United States.92 This definition of sedition, however, varied somewhat from that of the statute of 1798. Instead of finding that Duane's words were written with "bad intent," the Senate found him guilty of writing words whose "bad tendency" they feared. Although Tracy had claimed that it was necessary to punish the editor in order to preserve the Senate from destruction, that event was obviously so remote that the only grounds on which he could be seized was that of the tendency of his words to bring about that event at some time in the future. This ex parte finding also obviated any inquiry into Duane's intent, and made it unnecessary to examine him or any other witnesses before announcing a verdict of guilty. Although the Republican press deplored the Senate's action as "star chamber proceedings,"93 the Federalist papers lauded its 88 Ibid., 96. The vote was 16 to 11. 89 See ibid., 103-104 (Mar. 6, 7, and 8, 1800). ^Ibid., 104 (Mar. 8, 1800). 91 Ibid., 105. The vote was 19 to 8. 92 Ibid., 111-112. On Mar. 18,1800, a vote of 20 to 8 decided that the story was defamatory and malicious, but it dropped to 17 to 11 on whether the story was a high breach of privilege. 93 Richmond Examiner, May 2, 1800. 144 JAMES MORTON SMITH April action against the ^Aurora, "that prostitute of newspapers/' that "mother of abominations."94 On March 20, 1800, a month and a day after Duane's story appeared, and two days after the committee on privileges found him guilty of seditious utterances, the Senate ordered him to appear on March 24 to defend his conduct.95 For this occasion, the committee prepared a special form of proceedings. When the editor appeared, the president of the Senate, Thomas Jefferson, was to read the charge on which Duane had been found guilty of a "high breach of privileges." Before passing sentence, however, the Senate was to allow him to say anything he wished to "in excuse or extenuation" of his article. If he had no evidence to present, the sergeant at arms was to hold him in custody until the Senate decided on his sentence. If he had a defense, he was to offer his testimony to the Senate, then be released while that body deliberated his fate. When the upper chamber reached a decision, the sergeant at arms was to notify the editor, who was to appear to hear the verdict pronounced.96 During these maneuvers, Duane was not silent. Branding the Senate's action as a "monstrous attempt" to implicate and coerce him, he served notice that he would discuss that body's proceedings "with all freedom that the Constitution secures to the press."97 He stated that while he would respect the legal and constitutional acts of the Senate, he also owed duties to the Constitution itself, and to the public rights involved in the case. No power, he wrote, could compel him to ignore these superior duties. "No terror—no force— no menace—no fear" could make him betray the rights which were at stake in the Senate's conduct.98 Nor did Duane soft-pedal his attacks on the Federalists in general or those in the Senate in particular. On the very day that the Senate condemned his earlier remarks on the Ross bill as seditious, he printed another slashing attack on that measure.99 One of his corre- 94 Gazette of the United States, Dec. I, 1800. 95 Annals, 6C, iS, 113. At that time, Duane was to have an "opportunity to make any proper defence for his conduct, in publishing the aforesaid false, defamatory, scandalous and malicious assertions, and pretended information." The committee's report also reprints the Aurora s article of Feb. 19, 1800. Ibid., 113-115. Also see the Aurora, Mar. 21, 1800. 96 Annals, 6C, iS, 117 (Mar. 22, 1800). 97 Aurora, Mar. 17, 1800. V&Ibid., Mar. 21, 1800. 99 Ibid., Mar. 18, 1800. I953 DUANE AND THE ALIEN AND SEDITION LAWS I45 spondents also wrote that "in every part of the country and on every occasion wherein the subversion of our popular and free form of government can be contemned or injured, we find a party acting in unison, uniformly turbulent, intolerant, jealous of liberty, trembling at discussion, talking of order and regular government, and still launching into the most disorderly outrages and violence."100 The Senate's summons was served on Duane on March 21, 1800, the day that the above article appeared. Vowing his determination to maintain his constitutional rights, the editor requested his readers "to suspend their opinion, and not to be led by mistaken zeal to say or do anything discreditable to the republican cause." "Wait with the patient firmness of men conscious of a good cause," he told them, "and if the enemies of our liberties should take any steps injurious to the public rights, hostile to the constitution, or dangerous to personal security and the rights of discussion, they will furnish new evidence of their views, and the people will remember them at the period when a new election will call for a consideration of men and meas- ures."101 Two days before his scheduled appearance, the editor sent to the Senate a letter requesting the assistance of counsel and compulsory process to guarantee the attendance of witnesses in his behalf.102 Before action could be taken on this letter, however, Duane ap- peared in the Senate on March 24 as ordered and repeated his re- quest to be heard by counsel. The Senate agreed to allow him the assistance of lawyers while he was in attendance before its bar, but specified that defense counselors could be heard only in denial of any facts charged against him, or "in excuse and extenuation of his offence." The editor then was ordered to reappear on March 26 at noon.103 On March 25, Duane addressed identical letters to Alexander James Dallas and Thomas Cooper asking them to appear as his counsel next day. He informed them that he had attended before the Senate as ordered, not from a conviction that it had power to com- mand his presence, but from a sense of "delicacy and regard" for 100UU., Mar. 21, 1800.

wiUid.y Mar. 24, 1800. 102 Annals, 6C, iS, 117-119 (Mar. 24, 1800). This letter also is printed in the Aurora, Mar. 25, 1800. 103 Annals, 6C, iS, 117-119. I46 JAMES MORTON SMITH April that body as one of the branches of the Federal legislature. "I fear/' he concluded, "the resolution inclosed will prevent me from deriving all the benefit from your assistance which I had a right to expect from your acknowledged abilities, and justice to my cause."104 With this letter, this case also took a dramatic turn. Both Dallas and Cooper refused to serve as Duane's counsel because the resolu- tion authorizing their appearance excluded any inquiry into the jurisdiction of the Senate over such cases. By allowing arguments only in excuse or extenuation before imposing sentence, moreover, the Senate ruled out any justification of the offensive paragraphs by proving the truth of the facts which they contained. "I cannot sup- pose," Dallas informed Duane, "that you, or your counsel, would find it practicable to deny the existence of any fact, which the senate has already (doubtless upon sufficient evidence) examined and established; and the language of excuse, or extenuation, must always proceed with better grace, and more advantage from the penitent offender, than from a professional advocate."105 Cooper's refusal was even more emphatic. Since the Senate had prejudged all the material questions and dictated the defense meth- ods of the accused, he thought that any counsel would be but "a tame and manacled assistant." Writing with a vehemence reminis- cent of Duane's original criticism of the upper chamber, the lawyer wrote: "I will not degrade myself by submitting to appear before the senate with their gag in my mouth."m Finding himself deprived of professional assistance because of the Senate's restrictions, Duane refused any further voluntary attend- ance before that body.107 When he failed to appear oh March 26, therefore, the Senate declared him guilty of contempt and issued a warrant for the sergeant at arms to take him into custody and hold him subject to its orders. The warrant, signed by Jefferson as presid- ing officer of the Senate, provided that all marshals, deputy marshals, and civil officers of the Federal Government, "and every other per- son," were required to aid and assist the sergeant at arms in seizing Duane.108 104 Duane to Dallas, Aurora office, Mar. 25, 1800, Aurora, Mar. 27, 1800. 105 Dallas to Duane, Phila., Mar. 25, 1800, ibid. 106 Cooper to Duane, Phila., Mar. 25, 1800, ibid. 107 Duane to the President of the Senate [Thomas Jefferson], ibid. This letter also is printed in the Annals, 6C, iS, 122 (Mar. 27, 1800). 108 Ibid., 124. I953 DUANE AND THE ALIEN AND SEDITION LAWS I47 It soon became difficult to determine whether the Senate's pro- ceedings against the defiant Duane more nearly resembled a comic opera or an earnest manhunt.109 On the day that the Senate issued its warrant, the editor went into hiding and dared that august body to capture him. In its attack on Duane for his "daring act of defi- ance/'110 the Federalist newspapers lashed the editor and his lawyers as "foreign, mercenary caitiffs" known only for their turbulence and mischief.111 Surmising that the editor was hiding at George Logan's estate outside Philadelphia, the Gfazette of the United States com- mitted its suspicions to rhyme: "From the Senate D[uan]e flying, As advised by Mr. D[allas], Out to St[e]nt[o]n snugly lying, Bids defiance to the gallows. There with Ljpgan], hatching treason, Sowing seed on his plantation, Brooding o'er Paine's Age of Reason, D[uan]e seeks for consolation."112 In a public letter, Duane claimed that he had not left Philadel- phia, but was living in his own house most of the time. Indeed, he asserted that he had appeared on parade with his militia corps.113 After one of these bold appearances, the chagrined Federalists were reported to have collected $300 which they paid to twenty-two constables in an effort "to ferret out the obstinate democrat."114 Yet he managed to evade the Senate's process server until Congress adjourned. 109 Malone, 113, refers to the episode as an opera bouffe, which ended when Congress adjourned. John C. Miller, Crisis in Freedom: The Alien and Sedition Acts (Boston, 1951), 202, also asserts that Duane's defiance ended the case. This was but the preliminary, however, to Duane's indictment for sedition in October, 1800. See below. HO Philadelphia Gazette, Mar. 27, 1800. 111 Ibid., Mar. 29, 1800. Although both attorneys were citizens, Cooper had been born in England and Dallas in Jamaica. 112 Gazette of the United States, Apr. 18, 1800. H3 The "Republican Greens," Duane's military company, announced on Apr. 13, 1800, that they would meet under the command of Lt. John Roney rather than Capt. Duane. Aurora, Apr. 3, 1800. Duane made his assertion in a letter to J[ames] T. Qallender], Apr. 17, 1800, Richmond Examiner, May 2, 1800. 114 See "Letter from a Gentleman in Philadelphia to his friend in New York," Apr. 11, 1800, American Citizen (N. Y.), Apr. 19, 1800. I48 JAMES MORTON SMITH April The elusive editor confessed that his course of action was not what he would have wanted to do under other circumstances. If Philadel- phia had any magistrate who possessed "a knowledge of his duty and rights, or virtue or courage to act upon the habeas corpus right/' he wrote a friend, "I would take care to be arrested immediately." All things considered, however, he had decided to defeat the malice of the Federalists by avoiding arrest by a minion of the Senate.115 On the day that Duane went into hiding, the ^Aurora announced that Republicans were circulating a petition asking the Senate to reconsider its resolutions against the editor. The Philadelphia Qazette immediately condemned the circulation of the petition as an effort to array the people against the government: "A worthless fellow from a foreign nation, aided by fellow exiles, has dared, in his own cause, to issue a proscription of the senate of the United States, in the shape of a petition. It remains to be seen whether our government, our safety, and our happiness are to be subverted by such men as the Irish and English fugitives—Duane and Cooper/'116 While the Federalist press fulminated against subversives, Duane continued to write for his paper.117 Tracing the Senate's proceedings to party spirit and personal enmity, the editor attributed his prosecu- tion to his zeal and steadfastness in the cause of republicanism. He claimed that a group of Federalists had decided at a caucus held in Philadelphia that the success of their party in the approaching Presi- dential election depended on the destruction of the ^Aurora and the removal of its editor. The Senate's action was part of a general program to break down that paper and ruin its editor.118 Nor was he the only victim, Duane pointed out. Sedition trials, he charged, had been prosecuted in various parts of the United States "to terrify printers into silence or servility." These cases were designed to show that "the danger of enquiry into the merits of public characters would be so great as to deter any man from discussion. . . ." "But men are still found," he vowed, "who dare to speak truth."119 115 Duane to Jjames] T. C[allender], Apr. 17, 1800, Richmond Examiner•, May 2, 1800. 116 Philadelphia Gazette, Mar. 28, 1800. 117 In the Aurora, Mar. 28, 1800, he notified his readers that they could communicate with him within less than forty-eight hours by writing to him under seal. 118 Ibid., May 27, 1800. Duane declared that he was a defendant in nine law suits, some of them on facts for which he was "willing to perish if he does not prove." 119 Ibid. For a discussion of this problem, see my article on "The Sedition Law, Free Speech, and the American Political Process," William and Mary Quarterly, 3rd Series, IX (1952), 497- 511. 1953 DUANE AND THE ALIEN AND SEDITION LAWS I49 The Senate's attempt to punish him for his article, Duane wrote, was a graphic demonstration of the importance of the liberty of the press. If there was no truth in his article, why had the Federalists not sent a denial or refutation to him?120 He conceded, however, that the supporters of the measures against him had achieved partial success in their campaign. By forcing him into hiding they had defeated "the activity and industry with which he personally watched over daring and dangerous measures/'121 When Duane learned that Jefferson had signed the Senate warrant, he hastened to explain that it was another Federalist trick, designed to embarrass the Vice-President. Since he had no vote except in case of a tie, Jefferson's signature did not indicate that he approved the warrant. The committee on privileges, Duane wrote, had proposed that Jefferson sign it, the majority had agreed, so he had no choice but to sign. Yet he was no more accountable for the warrant for Duane's arrest "than for the Sedition Law, or Mr. Ross's law for regulating elections, &c, a measure expressly designed to prevent Mr. Jefferson being elected President of the United States." Yet if that bill passed, the editor observed, Jefferson would have to sign it.122 Although he could no longer report the debates on the Ross bill, Duane watched its progress. On April 1 he again denounced it as a party maneuver, and the next day he told how he came into posses- sion of three copies of the bill. He refused, however, to reveal his sources of information.123 When the House finally disagreed with the Senate's electoral count bill, Duane claimed that its rejection was another striking proof of the value of a "free and jealous spirit of investigation through the medium of the Press." Although the Federalists in the Senate had tried to overwhelm him by terror and oppression for revealing the party nature of the original bill, he argued, even the amended version was "too abominable to be coun- tenanced by the House of Representatives."124 Thus, the bill which

120 Aurora, Mar. 28, 1800. 121 Ibid., Apr. 1, 1800. 122 Ibid., Apr. 1, 1800. 123 See Note 63. 124 Aurora, Apr. 28, 1800. The rejection of the Ross bill by the House was due largely to John Marshall's moderation as the Federalist leader there. See Theodore Sedgwick to Rufus I5O JAMES MORTON SMITH April had brought on the proceedings against the Republican editor ex- pired while he was at large. The Senate, however, still smarted from Duane's defiance. When a ^ro-aAurora remonstrance and petition from the citizens of Philadel- phia was presented by Senator William Bingham on May 10, the Federalists moved to table it without a reading, but the vote resulted in an even split. Casting one of his few votes as presiding officer of the Senate, Jefferson broke the tie and the petition was read.125 The petitioners regretted that the Senate had adopted doctrines and practices of the privileged legislative bodies of Europe, and "dreaded the introduction of rights unlimited, and power unbounded, whether under the name of privilege, or prerogative, or implied authorities, or constructive powers." The Senate's action, they remonstrated, was really a second kind of Sedition Law, only worse. It allowed neither trial by jury, nor confrontation of witnesses. Accusers should not be the judge, the jury, and the punisher of the accused. Because they were persuaded that "the surest safeguard of the rights and liberties of the People is the freedom of the Press"—that "Bulwark of Republican Liberty"—the petitioners requested the Senate to recon- sider its action against Duane.126 Rejecting this plea completely, the Senate concluded its session by requesting President Adams to instruct the proper law officer to prosecute Duane under the Sedition Law for his article of February 19, 1800.127 The President willingly complied with this request. On May 16, he sent duplicate letters to Charles Lee, Attorney General of the United States, and to Jared Ingersoll, the Federal District

King, Phila., May n, 1800, Charles R. King, ed., Life and Correspondence of Rufus King (New York, 1894-1900), III, 237-238. Sedgwick, Speaker of the House, thought that Marshall's moderation was a weakness which stemmed from his disposition "to express great respect for the sovereign people, and to quote their opinions as an evidence of truth. The latter is of all things the most destructive of per- sonal independence & of that weight of character which a great man ought to possess." 125 Annals, 6C, iS, 180. Also see the Aurora, May 13, 1800. Although Sen. Bingham, a Federalist, introduced the petition, he voted not to allow its reading. 126 Aurora, May 13, 1800. The text was first given in ibid., Mar. 28, 1800. 127 Annals, 6C, iS, 184 (May 14, 1800). The vote on this resolution, the Senate's last official act before adjournment, was 13 to 4. See the Albany Register, May 23,1800. On May 14, the Senate refused to allow the reading of a second petition from Philadelphia citizens in favor of Duane. 1953 DUANE AND THE ALIEN AND SEDITION LAWS 151 Attorney in Philadelphia, directing them to commence legal proceed- ings against the editor of the oAurora.128 While this action was pending, the Federalist press kept up a constant attack on the Republican editor. Although the usual line of attack was on Duane's Irish ancestry, the Qazette of the United States leveled the gun of anti-Semitism against him. "Duane/' the paper assured its readers, "was once a Jew Cloathsman in London, from which place, and from which occupation, his integrity expelled him. . . . He passed in London under the name of Jew Aine."129 Not until October 17, 1800, was Duane indicted by the Federal grand jury. The editor and his counsel, Dallas, appeared in court that day before Associate Justice William Paterson of the United States Supreme Court and Judge Peters. Dallas observed that the Senate had requested President Adams to institute these proceedings on the last day of its session when nearly all the persons whose testi- mony would substantiate the truth of Duane's charge had left Phila- delphia. Without the evidence of several Senators, Dallas continued, the editor could not prove the facts which the law allowed as a means of exonerating himself. This evidence was indispensable not only to the defendant; the importance of the case itself made a thorough investigation a matter of justice to the Senate as well as to the people themselves, who had taken a great interest in the earlier proceedings. Dallas then submitted an affidavit naming over twenty material witnesses and requested the District Attorney to agree to a post- ponement.130

128 C. F. Adams, IX, 56. Ingersoll succeeded Rawle, Bache's prosecutor, early in May, 1800. See the Aurora, May 9, 1800. While Duane was in hiding, a Federal grand jury indicted him on Apr. 14, 1800, for libel and for opening and publishing letters of a foreign minister. See the Aurora, Apr. 15, 1800. These letters had been intercepted by one Sweezey, who was seized on suspicion of being a horse thief and brought before Robert Wharton, mayor of Philadelphia. Wharton authorized the opening of the letters. Duane claimed that they were sent to him and published by the express permission of Gov. Mifflin in 1799. Duane to J[ames] T. Qallender], Apr. 17, 1800, Richmond Examiner; May 1, 1800. Although this indictment for libel of a foreign minister was brought in the Federal Circuit Court, it could hardly have been brought under the Sedition Law, as that measure protected only the President, Congress, and the government from adverse criticism. 129 Gazette of the United States, July 16, 1800. 130 Aurora, Oct. 20, 1800. These witnesses included Senators Tracy, Read, Bingham and Latimer, who had favored the action of the committee on privileges, and Mason and Marshall, who had not. Congressmen Sedgwick and Gunn were also listed. 152 JAMES MORTON SMITH April Ingersoll acknowledged that the case needed careful investigation. "If the charges in this case were founded," he said, "the public ought to know it, for to a republican government nothing was so necessary as confidence in its Legislators, nothing more fatal than to deprive them of it thro' misrepresentation." In that case the District At- torney promised to prosecute to the full extent of the law. If Duane's claims were unfounded—and Ingersoll thought they were—he de- served to be severely punished. Nonetheless, the prosecutor agreed to the postponement, stating that he did not want it alleged, as had been done in other sedition cases, that party considerations had a share in any case he conducted. After observing that the court was neither guided nor actuated by any party, Judge Paterson postponed the trial.131 Since the Federal Government had shifted from Philadelphia to Washington in the summer of 1800, Ingersoll agreed to allow a mixed commission to go to the new capital to interview Senators whose testimony the defense deemed material. The government prosecutor was to nominate two commissioners and Duane was to appoint two more. Any two of them could take evidence as long as there was one commissioner representing each party. To represent the government, Ingersoll named Charles Lee, Attorney General of the United States, and Harrison Gray Otis, the Massachusetts Congressman who had been so instrumental in securing the passage of the Alien and Sedition Laws. Lee declined, but Otis accepted.132 Duane did not request the commission to function until February 15, 1801, when his counsel, A. J. Dallas, would be in Washington. Otis met once after that date with the defendant's commissioners. Although all the Senatorial witnesses were summoned, only Hum- phrey Marshall of Kentucky attended. Since the Washington wit- nesses were beyond the legal processes of the Circuit Court sitting in Philadelphia, they were not bound to answer the questions of the commission, which therefore adjourned to meet later. On that same day, however, Otis left Washington. Since the commission was joint, his departure prevented any further meetings. Duane's attempts to obtain evidence to support his charges against the Senate, therefore, were thwarted by Congressman Otis' sudden action.133

131 Ibid. 132 Gazette of the United States, May 18, 1801. 133 Ibid. I953 DUANE AND THE ALIEN AND SEDITION LAWS I 53 Before the next Circuit Court convened in May, 1801, moreover, Jefferson had replaced Adams as President of the United States and the Sedition Law had expired. The new Chief Executive immediately asked Duane for a list of prosecutions of a public nature against him, observing that he would treat the Sedition Law as a nullity whenever he met it in his line of official functions. If the prosecution recom- mended by the Senate was based on that law, Jefferson promised to order a nolle prosequi. His respect for the Senate, however, would oblige him to ask the District Attorney to consider whether there was any ground for a prosecution under an acknowledged law in any court. When Duane failed to submit a list of the public prosecutions pending against him, Jefferson concluded that either the trials were not scheduled for some time, or that the editor had decided "to meet the investigation before a jury summoned by an impartial officer/' In either event, he did not dismiss the case instituted by the Senate, because of Duane's failure to inform him of its status.134 When the Circuit Court met, therefore, the case against the ^Aurora was on the docket and was called up for prosecution. The editor's attorneys, Thomas Cooper and Mahlon Dickerson, observed that the efforts to secure defense evidence had been unsuccessful, and asked for another postponement. They objected that the limited jurisdiction of the court sitting in Philadelphia did not afford the defendant compulsory process in Washington. This made it im- probable that the editor could subpoena the Senators implicated by his remarks, because they would not want to testify against them- selves. Moreover, these witnesses were now scattered and would not return to Washington until the next session of Congress, which was scheduled to meet in December, 1801. But their chief ground for requesting a continuance was the plea that Duane's efforts to obtain evidence when all the necessary witnesses were in Washington had been defeated by the action of the prosecutor's agent, Congressman Otis.135 Although reluctant to grant another postponement, the Circuit Court judges finally did so, but only on the condition that the case should be tried peremptorily at the October term. This, of course, ruled out the possibility of waiting until Congress convened before

134 Jefferson to Duane, May 23, 1801, Paul Leicester Ford, ed., The Writings of Thomas Jefferson (New York, 1892-1899), VIII, 55. 135 Gazette of the United States, May 18, 1801. 154 JAMES MORTON SMITH April taking testimony from the widely dispersed Senatorial witnesses. Judge Griffith declared that the continuance was not based on Duane's objection to the lack of compulsory process to obtain wit- nesses. Any editor who published a charge which brought the govern- ment into hatred and contempt should be prepared to prove it when he made the statement. "He acts at his peril" the judge declared; "he knows his authority." In short, he argued, a newspaperman should be well enough informed to know that a court cannot issue compulsory process outside its jurisdiction and "foresee the hardship, (if there be one)." Nonetheless, Judge Griffith favored a continuance because of the "omission and acts of the prosecutor or agents of the prosecutor, who [now] insists on a trial." Duane's effort to obtain evidence, he con- cluded, "was rendered abortive by the acts of the commissioners named on the part of the prosecutor" "Had the defendant not relied upon the execution of the commission," Presiding Judge Tilghman added, "he might possibly have used other means of procuring testi- mony, if he had any; and therefore ought now to have that oppor- tunity." Although Otis' action was no doubt unintentional, the Judge observed that its effect was the same as if done "with all the possible consequences of designed direliction [sic]."m Duane hastened to inform the President that his trial had been continued until October, when it was "to be tried peremptorily!!!"137 Jefferson pointed out that the postponement gave the editor time to explain what action he wanted the President to take in the case. Duane then requested a dismissal of the indictment for his remarks about the Ross bill. He explained that he had not expected the case to come up in 1801 because a trial under the Sedition Law would be a recognition of its validity, though he knew that the President con- sidered it a nullity. If the case came to trial as scheduled, he would have to submit it to the discretion of the court. "Though no man," Duane wrote, could "doubt the truth of every tittle uttered" in his article on the electoral count bill, the government had since shifted from Philadelphia to Washington, and the witnesses had scattered. He had tried to secure evidence in the new capital to support his 136 Ibid, Judge Basset dissented from the ruling. This was the first session of the Circuit Court under the Judiciary Act of 1801, which relieved Supreme Court justices of riding circuit. All three judges were "midnight appointees" of President John Adams. 137 Duane to Jefferson, Phila., May 10, 1801, W. C. Ford, "Letters to Duane," Massa- chusetts Historical Society Proceedings, XX, 263. I953 DUANE AND THE ALIEN AND SEDITION LAWS I 55 assertions about caucuses, but he had failed. Nor did he see any prospect of obtaining the kind of evidence the court demanded. Even if he could obtain the information, it would take all his time from his means of livelihood. Because of family considerations, therefore, Duane requested that the suit be dismissed.138 Jefferson complied quickly by discontinuing the prosecution under the Sedition Law. As he had decided earlier, he directed a new proceeding against Duane "on whatever other law might be in evidence against the offence" of criticizing the Senate. When this was done, the grand jury, of course, found no law against it other than the expired Sedition Law and refused to find an indictment.139 In a special message which he prepared for the Senate but never delivered, Jefferson explained that in taking his action he had en- deavored "to do the duty of my station between the Senate and Citizen, to pursue for the former that legal vindication which was the object of their resolution, to cover the latter with whatsoever of protection the Constitution had guarded him & to secure to the press that degree of freedom in which it remained under the authority of the states, with whom alone the power is left of abridging that freedom, the general Government being expressly excluded from it."140 Occupying a new position in 1801, the leading opponent of the Sedition Law thus brought to an end the proceedings which had begun nearly a year and a half earlier when he was forced by his position as presiding officer of the Senate to sign, against his better judgment, the warrant for Duane's arrest. Although Jefferson pleaded his regard for the Senate as the reason for instituting a new proceeding against Duane, the failure of the grand jury to find any legal basis for the Senate's complaint clearly branded the original action by the Federalist majority as a usurpation of authority and a direct attempt to punish Duane and the ^Aurora for their criticism of the disreputable Ross bill. The Ohio State University JAMES MORTON SMITH

138 Same to same, June 10, 1801, ibid., 267. 139 Jefferson to Edward Livingston, Washington, D. C, Nov. 1, 1801, P. L. Ford, VIII, 58 (note). 14° Undated manuscript [1801], ibid.y $6 (note). Also see Jefferson to Gallatin, Nov. 12, 1801, ibid., 57 (note). For a brief discussion of Jefferson's action, see W. C. Ford, "JerTers°n and the Newspaper," Records of the Columbia Historical Society, VIII (1905), 94-95.